标准关系技术昨天,今天和明天

O.M. Balynska, M.M. Blikhar
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引用次数: 0

摘要

本文研究的是所谓的标准关系技术的演变问题,该技术是由H. Daubenspeck在十九世纪和二十世纪之交引入的。然而,这个想法被纳入了手册,直到2023年(经过很长一段时间的休息)才在第36版中出版,标题为“评估员考试中的民事法律工作技术”。判决,提交文件,律师意见”。本文的目的是概述标准关系技术发展的基本趋势。为了实现上述目标,有必要考虑以下问题:在2013年之前,2013年和2023年,或者可能更晚,关系技术的标准是什么?本文考虑并继续分析关系技术从1884年到2008年的历史,由L. Gusseck在2010年进行。换句话说,它追溯了从H. Daubenspeck的第一版到第34版的关系技术的演变。重要的是要考虑到H. Daubenspeck为关系技术和文献学的结合奠定了基础。萨特尔马赫在民事-法律工作方法方面发展了关系技术。W. Sirp在法官判决的陈述中重新引入了包容和三段论,而W. Schuschke则将关系技术扩展到律师的职业。此外,还特别强调了关系技术的以下特点:H.道本斯佩克(H. Daubenspeck)在关系技术中介绍了实体法上将法律规范划分为基本规范和辅助规范,以及它们在理论和(或)法律上划分为法律辩护规范和两种类型的法律否定规范;P. Sattelmacher将他的关系技术方法依赖于所谓的“schlssigkeit”的概念,即要求首先单独和顺序地考虑主张的积极理由,然后是主张的消极理由(反对的积极理由)。第35版H. Daubenspeck的手册(2013年出版)强调了一个相当新的关系技术结构。因此,它的重点不是标准划分(抽象-专家意见(votum) -判决),而是根据计划准备关系:对案件情况的分析(以前是抽象的),一般法律规则,民事法律工作技术(votum),以及对判决草案的阐述。在最新的2023年(今天)第36版中,概述的结构直接基于出版计划,这一版本的新颖之处在于重点关注法院判决的执行法。对于未来(关系技术的明天),文章展望了关系技术与阿列克谢的法律论证理论相结合的前景。这种结合应该特别在一般法律规则中表现出来。此外,这样的组合是可能的,一方面,涉及关系技术不仅规则作为确定的(最终的)规范,而且原则作为优化命令,即具有初步特征的规范。另一方面,认为关系技术不仅应该建立在包容这种法律适用形式的基础上,而且应该建立在权衡原则理论的基础上。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
Standard Relational Technique Yesterday, Today, and Tomorrow
The article under studies deals with the issue of the evolution of the so-called standard relational technique, which was introduced by H. Daubenspeck at the turn of the XIX and XX centuries. However, this idea was included into the manual, which was published only in 2023 (after a very long break), in the 36th edition, under the title “Civil-Legal Working Technique at the Assessor’s Examination.Votum, Judgement, Presentation of Documents, Attorney’s Opinion”. The purpose of the article is to outline the basic trends of the development of standard relational technique. In order to achieve the above goal, it is necessary to regard the following issues: what standard relational technology used to be before 2013, in 2013 and 2023, or may be later. The article takes into account and continues the analysis of the history of relational technique from 1884 to 2008, carried out by L. Gusseck in 2010. In other words, it traces up the evolution of relational technique from the very first edition by H. Daubenspeck and up to the 34th edition. It is important to take into consideration the fact that H. Daubenspeck has laid the foundations for combining relational technique and philology. P. Sattelmacher has developed relational technique in terms of the civil-legal working method. W. Sirp has reintroduced the subsumption and syllogism to the presentation of a judge’s decision, whereas W. Schuschke has extended relational technique to the profession of an attorney. In addition, particular emphasis has been laid on the following features of relational technique: H. Daubenspeck’s introduction into relational technique of the substantive-legal division of legal norms into basic and auxiliary ones, as well as their doctrinal and / or legal division into law-justifying and 2 types of law-negating norms; P. Sattelmacher’s relying his approach to relational technique on the concept of the so-called “Schlüssigkeit”, i.e., the requirement to consider separately and sequentially first the positive grounds of a claim, and then the negative grounds of a claim (the positive grounds of objections). The 35th edition of H. Daubenspeck’s manual (published in 2013) highlights a quite new structure of relational technique. Hereby, it focuses not so much on the standard division (abstract - expertise opinion (votum) – judgment), but on the preparation of a relation according to a plan: analysis of the circumstances of the case (formerly abstract), general rules of law, civil-legal working technique (votum), and elaboration of a draft judgment. In the latest, 36th edition of 2023 (today), the outlined structure is directly based on the publication plan, with the novelty of this edition being the focus on the law of enforcement of a court decision. As for the future (the tomorrow of relational technique), the article predicts the prospect of combining relational technique and R. Alexy’s theory of legal argumentation. This combination is supposed to manifest itself particularly within general rules of law. Besides, such a combination is possible in terms of, on the one hand, involving in relational technique not only rules as definitive (final) norms, but also principles as optimization imperatives, i.e., norms which have a prima facie character. On the other hand, it is argued that relational technique should be based not only on such a form of application of law as subsumption, but also on the theory of weighing principles.
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